On The Decision-making Mechanism Of Discretional Non-prosecution

The discretional non-prosecution is an important way to filter unreasonable cases and implement the criminal policy of tempering justice with mercy. However, due to the approval decision-making mechanism, discretional non-prosecution did not play its due function with the problem of low applicable rate and bad efficiency. In theory or in practice, scholars have an intensive study on the simplification of decision-making mechanism, whereas the recommendations have failed to ensure the effective operation of the system. On the basis of decision-making mechanism, analyzing the attribution of authority and the organizational model, it not only helps to simplify the mechanism, but also helps to highlight the procedural functions of pre-trial procedures, ultimately helps to realize the efficiency and equity value.Thus study on the mechanism develops a systematic in theory, also has an important practical prospect.In addition to the introduction, the article is divided into three parts, about 38,000 words.The first part discusses the modality of mechanism. There are two kinds of basic forms:Indirect-type and direct-type. Indirect- type mechanism adopts three(or four) approval process, prosecutors did not enjoy the decision-making power,so the decision has an administrative color.In the direct-type mechanism, prosecutors enjoy full authority and the decision is consistent with the principle of judicial factualism and directness. For most of the organs, indirect-one is the prevailing mode. From the micro perspective of assessing the decision-making mechanism, it includes the course of judicial administration and judicial identification. The course of judicial administration involves case-diversion of Case Management Center, approval of sector's head(or deputy), the Attorney General(or an authorized Deputy Attorney General) and filing procedures; The course of judicial identification involves the undertakers review of the evidence and the facts, collective discussion of the Department(or the Department of the deputy chief prosecutor's office) and Procuratorial Committee.The second part analyzes the drawbacks of indirect-type mechanism. In practice, the indirect-type mechanism' drawbacks mainly reflected in two aspects: one is the mechanism of internal friction. The judicial interpretation fixes that it must be reported to the Attorney General or Procuratorial Committee for final approval for the discretional non-prosecutioncases. Compared with the convenient prosecution procedure, the cumbersome approval process, the prolix joint time and the miscellaneous documents attribute to dampening the enthusiasm of the Prosecutor, resulting in a relatively low rate of application. The other one is the lack of mechanism's reason. Indirect-type mechanism concentrates power in the department, the attorney general and the Procuratorial Committee, coupled with the defect of individual and the collective, so it causes review process becomes a mere formality and restricts the accuracy of the fact.The third part puts forward some ideas to improve the decision-making mechanism of discretional non-prosecution. For the drawbacks, We believe that the mechanism should be improved from the following three aspects: First, in power ownership, it return to the judicatory of true, it should be granted to the undertakers that the judicial rule requires, at the same time to limit the power of the superior, so as to prevent the internal administration replace judicial decision. Second, in the decision-making mode, it should draw the mechanism of the Courts' collegiate bench, by two forms of the joint meeting of prosecutors and prosecutors collegiate system, to make up for the deficiency of sole judge proceedings on the basis of authorization. Last, some guaranteed measures should be advanced to create a favorable external conditions for the program. For example, regulating the decisive reason of documents, establishing restraint system, improving the prosecutors' rank, treatment,promotion mechanism and so on.